DECISION
Application No. 0003
Application By: Robin Franklin Hall
Respondent: Secretary of State for Health
Hearing Date: 20th December 2001
concluded 21st December 2001
Application
Mr Hall appeals under Section 4(1)(a) of the Protection of Children Act 1999 against the decision of the secretary of State for Health to include him in the list kept under Section 1 of that Act (POCA List).
Facts
Mr Hall (born 12th February 1940) commenced employment as a Social Worker with West Sussex County Council (West Sussex) in September 1973. His last position was as Senior Social Worker in the Youth Court Services Team. He took early retirement, effective 6th April 1995.
Prior to Mr Hall's retirement, following two allegations made against him, West Sussex conducted an investigation and held a disciplinary panel hearing. These allegations were also reported to the Police who took part in the investigation but did not prosecute him. On 4th April 1995 West Sussex reported to the Consultancy Service of the Department of Health that its Panel had decided that he had "touched A in an inappropriate manner" and "that E was masturbated by Mr Hall on a number of occasions".
On 6th April 1995, the Department of Health wrote to Mr Hall advising him that his name had been provisionally included on the Consultancy Service Index. Having taken into account representations made by him, this was made permanent on 27th April 1995. On 2nd October 2000, after an opportunity to make representations, The Secretary of State decided to include him on the POCA List.
The allegation relating to A arose from events that occurred during a weekend stay at a caravan in Ashurst in 1994. Mr Hall was a leader of a Scout Group and took A, then aged fourteen and three other boys, B, A brother, then aged eleven, C also then eleven and D, then aged fifteen for various activities, sleeping in the caravan on Saturday evening and returning on Sunday.
A died on 9th August 2001. The Department of Health advised that he had
committed suicide. In a video interview conducted by West Sussex Police and West Sussex on 5th August 1994 he stated that Mr Hall had tickled him on his upper body, down his shorts and touched his penis about four or five times. He also said that on another occasion on a morning during a camping weekend some two weeks later in which he shared a tent with two
other boys, Mr Hall had come into the tent and asked one of the boys who was awake to go and make some tea for the leaders. Mr Hall then attempted to turn him over by tugging on his sleeping bag so that he was facing him. When another boy woke up he stopped.
A, B and C stated in their video interviews in August or September 1994 that Mr Hall often instigated horseplay, tickling, grabbed knees and legs and generally had physical contact with boys. He tried to make them laugh. A had said to Mr Hall that he could not be made to laugh. None of the other boys saw the incident which took place in the caravan, although they were inside for at least some of the relevant period.
Mr Hall was interviewed by the Police around six weeks afterwards. He denied tickling A and then stated that he was certain he had not. He later suggested that he might have tickled his toes, during the camping weekend as they had protruded in his sleeping bag outside the tent. At the hearing, he said that it was commonplace for him to tickle boys on and under
their arms and belly, pat their heads and slap them on their legs, but not in an intimate way.
He stated that he had not and would not tickle or touch any boy below their belt or on their private parts.
In a statement made on 29th January 2001, for the purpose of the Tribunal Appeal, A mentioned another incident which occurred on the Sunday morning in the caravan after the touching incident. He stated that whilst he was still in bed, Mr Hall rolled him over forcibly on to his front, held him down, pulled his shorts to one side and pushed his penis into him. He said that he did not mention it at the time of the touching incident as he didn't wish to go through everything and tell anyone about the rape and wanted to do "the minimal amount of talking that I could without having to go into it, just so that it would all stop".
Mr Hall submitted at the hearing that it would have been impossible for the alleged events to have taken place without others being aware as other boys were in or near the caravan and the tent on the respective occasions and other adults were close to the tent on the relevant morning. He highlighted discrepancies in the statements obtained during the investigations.
He suggested that A apparent confidence, calm and credibility during the video interview, in which he had not mentioned the rape, could not have been maintained if such an event had occurred and was in his mind at the time.
Mr Hall's view is that A had built resentment against him as he had refused to pay him for jobs on another caravan which was a Scout project and to give him jobs at his home for payment at a time A had said he needed money urgently. He said that A was sexually aware at the time of the weekends, perhaps more so than the other boys in the group.
Mr Hall emphatically denies that he carried out the alleged acts. He submitted that in any event, it would have been impossible as "In 1994 I suffered a slight stroke and following various tests was placed on permanent medication for high blood pressure, one of the side effects of this medication is impotence and this has been the case with me. I was unable to sustain an erection at the time or since". He also said that his penis is extremely small, it has not developed since childhood and throughout his adult life he has been shy and embarrassed and avoided ridicule by being seen.
Dr Andrew Foulkes, a Specialist in Erectile Dysfunction at the Royal West Sussex Trust since 1993 interviewed and examined Mr Hall at the instance of the Tribunal on 21st August 2001.
He concluded that Mr Hall's penis is within the normal range although slightly smaller than average. It was not possible to confirm or refute Mr Hall's account that he could not sustain an erection in July 1994 but hypertension and/or the medication used in its treatment can contribute to impotence. Taking into account the three conditions "operating" and Mr Hall's girth he stated that "On the basis of my interview with Mr Hall, his past medical history and the circumstances within which the alleged offence took place, I think that the balance of probability in my view is, that anal intercourse did not occur".
The allegation relating to E arises from occasions during 1978 to 1980 when he stayed at Mr Hall's family home in Bognor Regis whilst Mr and Mrs Hall were foster parents. He was aged twelve or thirteen at the start of the placement. Notes of an interview conducted by Mr C Scanes, the Deputy Divisional Director Southern of West Sussex Social Services and Mr C Gubbs, Senior Personnel Officer, Employee Relations, West Sussex on 11th January 1995 record that after moving to the Hall's home "an incident occurred after about one month when Mr Hall had entered E's bedroom whilst he was in bed and had proceeded to pull down E's pyjama bottoms
and then masturbated him. He (Mr E) said that on this occasion Mr Hall had said nothing and this act had gone on on a regular basis for the duration of time that he was with Mr and Mrs Hall. E said that he was unable to talk to anybody about it at the time".
This took place in silence at least every week about ten or fifteen minutes after he had gone to bed.
Mr Hall stated that his children slept in the next bedroom and either they or his wife would have noticed had he remained in D's room silent for the period mentioned. He denied that any such incidents had taken place. He ascribed D's motive for these allegations as financial, possibly inspired by a television programme in which compensation for victims of abuse had been highlighted. He gave various explanations as to how D might have known of the enquiries arising from A's allegations including local publicity generated by public meetings at the time.
Mr Hall cast doubt on the experience and ability of the West Sussex Social Worker who carried out the interview with A. He maintains that the disciplinary panel hearing was unfair. He was not allowed an essential adjournment to seek advice and representation.
Relevant matters were not investigated. Although aware of the policy that social workers should not be alone with young people, particularly when on overnight trips, standards have changed since that time. Common practice in the Youth Court Service then was for this to take place. He cited examples of trips to the battlefields of Northern France. He gave up his Scouting connections when put on the Consultancy Service Index. He stated that several other people had resigned in disgust at the way he had been treated. He has no intention of returning to work with children.
Counsel for the Secretary of State submitted that A's video evidence was clear and credible without indication of anxiety or inconsistency. It is supported by C Carmen's evidence and was accepted as credible by the Senior Investigating Police Officer and West Sussex Disciplinary Panel. Mr Hall has moved from denial of tickling to stating that it was commonplace and may have occurred with A. The events alleged could have taken place notwithstanding the presence of other boys in the caravan as Mr Hall's back
would have blocked their view and for part of the period C and B
may have been outside. Protestations by A would have been interpreted as
reference to tickling. Similarly, regarding the incident in the tent, Mr Hall's body would have prevented anybody outside the tent seeing what he was doing with his hands.
Counsel for the Secretary of State submitted that it was not necessary in resisting Mr Hall's appeal to prove that the rape mentioned by A had taken place. It was accepted that there is no corroborative evidence. Dr Foulkes' conclusions depended upon Mr Hall's own comments to him and the unknown factors of his degree of arousal, the effects of his medication and his girth in 1994.
Counsel for the Secretary of State submitted that it was not inherently unlikely that D Cottrell should wait a long time before his allegation. This is consistent with many child abuse incidents. There is no obvious connection between E and persons who knew about A's allegations.
Tribunal's Conclusions with Reasons
We have carefully considered the written evidence and submissions presented to the Tribunal prior to the hearing and the oral evidence and submissions given at the hearing.
Under Section 4(3) of the Protection of Children Act 1999, Mr Hall's appeal must be allowed unless we are satisfied that:
He was guilty of misconduct (whether or not in the course of his duties) which harmed a child or placed a child at risk of harm.
He is unsuitable to work with children.
We must look at matters afresh at the date of the hearing and reach our determination on the balance of probabilities.
We considered the nature of the allegations relied upon by the Secretary of State in reaching the decision to include Mr Hall on the POCA List. We concluded that they were of such seriousness that should we be satisfied that they took place, they amounted to misconduct falling within Section 4(3) and would be a clear indication that he is unsuitable to work with
children.
We considered A's video evidence and the video evidence given by the other boys. We found the evidence to be cogent, consistent within the circumstances, spontaneous and sufficient to establish that Mr Hall touched A penis during an incident in the caravan during the weekend. We accept that the evidence of the other boys relates to what they saw which would not have been an unobstructed and continuous view of the occurrence. We found
support for our conclusion from A's evidence of Mr Hall's contact on a subsequent occasion in the tent. We accept that no sexual contact took place but this was another occasion that Mr Hall had questionable physical contact. We conclude that the events described by A in his video statement took place.
We were not satisfied that Mr Hall purely engaged in horseplay and tickling. We considered that an experienced Social Worker would not have tickled a child on their belly, even if engaged in horseplay and tickling in a less sensitive area.
We considered the allegation of anal rape and have borne in mind Mr Hall's submission that A could not have been so composed in his video interview if this event was on his mind. The Secretary of State does not rely upon this incident but the truth and reliability of A's previous video evidence must be in question should the subsequent allegation be unfounded. We found it surprising that A did not mention it at the time and accept that had it taken place he would not have appeared as credible in his video interview. We were convinced by the video interview to the extent that we conclude that there
must be another reason for the later allegation. We do not find it likely that it reflects events that took place on the same caravan weekend.
A died tragically on 9th August 2001. We consider it correct to assume from the Secretary of State's notification of suicide, that his state of mind must have been considerably disturbed. Although he said in his statement of 29th January 2001 that he had told his mother of the rape "Eighteen months or a couple of years ago" and that he told the Police, there is no other confirmation of this. We were not able on the evidence available to conclude whether or
not the rape took place on some other occasion. We conclude it likely that A state of mind in the period leading to his death makes his later evidence unreliable and for the same reason, it does not cast doubt on the evidence given by him in 1994.
It was submitted that the evidence regarding the allegation relating to E consists of an assertion by him and a denial by Mr Hall. Mr Hall accepts that he regularly went into D's room and there is consistency with D's statement regarding him remaining there for a time. The circumstances existed for the alleged events to have taken place. From the descriptions given in the evidence taking into account the factors Mr Hall said cast doubt, which we did not find convincing, we conclude on the appropriate balance of probabilities that these events did occur.
In summary we conclude that:
Mr Hall touched A's penis inappropriately during the caravan weekend.
Mr Hall masturbated E during the period he resided in foster care at his
home.
That i. and ii. are misconduct which harmed a child or placed a child at risk of harm.
Mr Hall is unsuitable to work with children.
Order
Mr Hall's appeal is dismissed.
Date: January 2002
Signed:
Chairman: L J Bennett